Jacques slated to appear in court
By DANIEL BARLOW Vermont Press Bureau | October 07,2008
MONTPELIER — Brooke Bennett's accused kidnapper and killer will appear in a Burlington court Wednesday to face new federal charges that could see him put to death if convicted.
Michael Jacques, 42, will appear in Burlington's U.S. District Court before Judge William Sessions III to be arraigned on federal charges connected to Bennett's disappearance and murder in late June.
Jacques, a convicted sex offender who was the 12-year-old girl's uncle, faces charges of kidnapping, murder and possession of child pornography after her body was found in a shallow grave near his Randolph Center home a week after she disappeared.
It was not clear Monday if Jacques, who has been held by authorities since his arrest this summer, will actually enter a plea at the hearing Wednesday or if only the criminal counts will be formally presented to him and his attorneys.
U.S. Attorney Tom Anderson, who is prosecuting the case, did not return a phone call for comment Monday. Attorneys for Jacques, who include a federal defense attorney and two death penalty experts from New Jersey, could not be reached for comment.
Michael Mello, a professor of criminal law and a death penalty expert who teaches at Vermont Law School in South Royalton, said Wednesday's court hearing will likely be very short, but that behind the scenes, prosecutors and defense attorneys are working hard to finalize their cases.
"Both sides are doing good old investigations right now," he said. "They're like gumshoes trying to track down all the facts of the case."
Prosecutors have placed the death penalty as an option on the table, but they haven't fully endorsed that idea yet. If that is the preferred punishment, prosecutors would now be working to ensure that "all the ducks are in a row" to introduce that into the case, Mello explained.
But it is U.S. Attorney General Michael Mukasey who makes the final decision on whether or not Jacques could face the death penalty. Federal prosecutors in Vermont would make a recommendation to a U.S. Department of Justice committee, which then makes it own recommendation to Mukasey, Mello said.
One wrinkle in the procedure is this year's presidential election, which means a new administration will take over in four months. Democrat Barack Obama and Republican John McCain both support the death penalty, but both men would probably appoint their own new attorney general to replace Mukasey, Mello explained.
"We could see an attorney general similar to Janet Reno, who did not use the death penalty in states that don't already have it," Mello said.
Meanwhile, Jacques' defense attorneys are likely trying to poke holes in the underpinnings of the federal government's case against the accused killer. Prosecutors relied on a new federal law, the Adam Walsh Act — named after another kidnapped child — that allows them to prosecute more cases that were once handled by state courts.
The Adam Walsh Act allows federal prosecutors to include use of the Internet and telephone services to prosecute their case even though the actual crime— in this case the kidnapping and murder — never actually crossed state lines. Jacques allegedly made changes to Bennett's MySpace profile to make it appear that she ran away with a boyfriend.
Jacques' defense attorneys will likely argue that the Adam Walsh Act violates the commerce clause of the U.S. Constitution and if they win that argument, the federal government's entire case collapses, Mello said. If that did occur, state prosecutors could still bring forward the case, but the death penalty would not be an option.
"If the federal court lacks jurisdiction, then it is game over," he said.
Another interesting twist in the Jacques criminal case centers on Sessions, the judge. Sessions also presided over the trial of Donald Fell, who was convicted of killing a North Clarendon woman several years ago and is now awaiting his death sentence after losing an appeal.
Fell's criminal case was also prosecuted by the federal government and Mello said Sessions is the perfect judge to oversee Jacques' case as the specter of the death penalty hangs over it.
"There's a real learning curve with death penalty cases," Mello said. "The law in this area is completely different. It really is a different kind of animal."
Jacques is accused of kidnapping Bennett on June 25 and drugging, raping and then killing her, according to an indictment handed down by a Rutland grand jury last week. He allegedly used a second female juvenile, whom police say he sexually and mentally abused for up to five years, as part of a ruse to bring Bennett to his home.
The high-profile case resulted in an ongoing review of Vermont criminal law, especially those dealing with sex offenders.
Jacques is scheduled to appear in U.S. District Court in Burlington at 1:30 p.m. Wednesday.
Contact Daniel Barlow at email@example.com.